San Diego Drug Defense Attorney
The medical value of narcotics has been known since ancient times. Drugs have been used to treat illnesses or as part of religious rituals. When hypodermic needles were introduced in the mid-1800s, patients were originally encouraged to buy and treat themselves with a variety of powerful drugs. However, society’s view of drug use changed and the first narcotics laws began to appear in the early 1900s. In 1970, the federal government passed the Drug Abuse Prevention and Control Act that codified federal drug law into a uniform system. The act classifies drugs into five categories, listed in schedules, and establishes regulatory requirements and penalties for the misuse of the drugs on each schedule. The act also allows the United States Attorney General to add drugs to the schedules, if necessary.
Drug Charge Penalties and Restrictions in San Diego
The most severe drug crime restrictions and penalties involve Schedule I and II drugs.
- Schedule I drugs are those with a high potential for abuse, an absence of any medical use, and are dangerous to the user even under medical supervision. The most well known of these drug cases involve GHB, heroin, LSD, mescaline, marijuana, and peyote.
- Schedule II drugs have a high potential for abuse, a high potential for severe psychological or physical dependency, but a currently accepted medical use. Schedule II drugs include opium, cocaine, methadone, amphetamines, and methamphetamines.
- Schedule III drugs have less potential for abuse than Schedule II drugs, a potential for moderate psychological or physical dependency, and an accepted medical use. Schedule III drugs include anabolic steroids, amphetamine and any product containing methamphetamine, codeine, and nalorphine, which is used to detect narcotic use.
- Schedule IV drugs have less potential for abuse than Schedule III drugs, have a limited potential for dependency, and are accepted in medical treatment. These drugs include tranquilizers, meprobamate, chloral hydrate, most drugs that cause sleep, and sedatives. Schedule V drugs, which have a low potential for abuse, limited dependency, and accepted medical uses, include drugs with small amounts of codeine or other narcotics in them.
San Diego Drug offenses range from simple possession of narcotics or possession of drugs, to participation in an ongoing criminal enterprise, to manufacture of drugs, distribution of drugs and trafficking of drugs.
Possession of Drugs Charges
Simple Possession of Drugs requires that the offender knowingly and intentionally possess a scheduled drug without a valid prescription. The government must prove the offender knew the drug was a controlled substance and had either actual possession of it, or other control over it, either alone or with another.
We have achieved the highest rating by AVVO as drug defense attorneys in San Diego, California and we will fight for you to disprove the drug possession charges.
The Federal Court sentencing guidelines, which are now advisory, suggest a maximum of one year in prison for a first-time drug offense, a maximum of two years in prison for a second-time drug crime, and a maximum of three years in prison for a third-time or higher drug offense.
In addition, the Guidelines propose that a sentence for possession of more than five (5) grams of crack cocaine is increased to a minimum of five years in prison, even for first-time drug offenders. There may also be a fine imposed.
Manufacturing, delivering, trafficking and/or possession with intent to deliver a controlled substance are crimes with escalating penalties.
Defense Against Drug Charges
As experienced San Diego drug defense lawyers, we marginalize the prosecution case by emphasizing the nature and variety of the drug involved, the quantity of the drug and our client’s prior record, if any.
For example, a first offender who is convicted of possession with intent to deliver 100 grams to five kilograms of heroin may receive a minimum sentence of five years in State Prison, and up to 40 years.
Three crimes, distributing controlled substances to persons under 21 years of age, distributing controlled substances near a school, and using persons under age 18 to violate drug laws, are penalty-enhancement crimes for which the sentence can double or triple what it would otherwise be for distributing that particular amount and type of drug.
The offense of continuing criminal enterprise is charged when the defendant commits a felony drug violation as part of a continuing enterprise with five or more individuals from which substantial income is obtained. Its penalty can be 20 years to life in prison, or even the death penalty if the offender intentionally kills another.
Most states have drug laws that mirror the federal laws. However, the penalties may be less harsh and more flexible under state sentencing schemes than under the federal sentencing guidelines. As your legal counsel, we will present a powerful argument that conviction of simple possession of drugs, for example, should receive a sentence of drug treatment rather than County Jail time, and we will seek probation for our clients who are first-time offenders in even the more serious crimes if we cannot have the drug charges dismissed and/or reduced.
We strive to be the best we can as your skilled, experienced and effective San Diego drug crime defense attorneys to present a persuasive defense as well as to establish all of the facts in mitigation, such as the following:
- Actual or potential harm to the public because of the drug crime or narcotics charge;
- Prior overall criminal record, if any;
- Level of compliance with sentence and terms of probation;
- Prior arrests of record of the defendant;
- Number and/or variety of current drug violations or narcotics charges (counts) in San Diego County;
- Nature and severity of the drug offenses or narcotics crimes under consideration;
- Rehabilitation and remorse of the defendant charged with a drug crime;
- Time passed since the underlying offense or arrest;
- The financial benefit to the defendant, if any from the charges;
- Whether the conduct of the defendant in the case demonstrated cruelty;
- Whether the defendant was suffering from a mental or physical condition that significantly reduced culpability for the drug offense(s);
- Whether the defendant charged with a drug crime or narcotics offense is ineligible for probation;
- Whether the defendant facing a drug or narcotics conviction made restitution to the victim;
- Whether the charges involved great violence, great bodily harm, threat of great bodily harm, or other acts disclosing a high degree of cruelty, viciousness &/or callousness;
- The defendant was not armed with or did not use a weapon at the time of the commission of the drug crime;
- The defendant did not induce others to participate in the commission of the drug charges or occupied a position of leadership or dominance of other participants in its commission;
- The defendant did not induce a minor to commit or assist in the commission of the crime;
- The defendant was not convicted of other crimes for which consecutive sentences could have been imposed but for which concurrent sentences are being imposed.
- The manner in which the drug charge was carried out in does not indicate planning, sophistication, or professionalism;
- The case did not involve an attempted or actual taking or damage of great monetary value;
- The narcotics offense did not involve a large quantity of contraband;
- The defendant did not take advantage of a position of trust or confidence to commit the crime;
- The defendant charged with a drug or narcotics offense has not engaged in violent conduct which indicates a serious danger to society;
- The defendant has not served a prior prison term; and,
- The defendant facing a drug conviction was not on probation or parole when the crime was committed
Consequences of Narcotics Offense or Drug Charges
- County jail or state prison incarceration for the drug crime or narcotics conviction
- A permanent criminal record for the narcotics or drug conviction
- Significant fines
- Probation or Parole
- Mandatory AA or NA classes and treatment
- Losing your right to own a deadly weapon
- Unable to obtain and/or difficulty with employment
- Lifetime revocation of your California Driver’s License
- Being subject to denial of a State Board license or having your professional license suspended or revoked (see http://www.spitalaw.com/ – Professional Licensing)
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Drug offenses and narcotics crimes involve a variety of illegal substances, including marijuana, methamphetamine, ecstasy, cocaine, heroin, ketamine and other popular drugs of choice. Punishments by the San Diego Superior Court Judges range in severity from a misdemeanor for possession of narcotics or drugs to a life sentence for other narcotics crimes.
At Spital & Associates, we will seek DIVERSION, which allows our client to participate in a drug program to become clean and sober. Once you have completed the program, we can obtain a dismissal of the charges. If you or someone you know has been arrested or is under investigation for Possession of Drugs in San Diego County, Possession for Sale, Cultivation of drugs, Manufacturing, Trafficking, illegal transportation of drugs or any other drug crime, call Sam Spital, Managing Attorney at619.583.0350 immediately.
We have handled drug crimes involving:
- Cultivation of marijuana
- Distribution of drugs, narcotics and/or controlled substances
- Possession of drugs, narcotics and/or controlled substances
- Manufacturing drugs, narcotics and/or controlled substances
- Possession of drugs, narcotics and/or controlled substances with Intent to Sell
- Trafficking in drugs, narcotics and/or controlled substances across the border from Mexico
- Transportation and importation of drugs, narcotics and/or controlled substances from Mexico
Drug Crime and Narcotics Case Defense
The prosecution must prove a variety of elements beyond a reasonable doubt to win a case for a drug charge or narcotics offense. We employ private investigators to assist in developing our defense. Some drug cases and narcotics arrests are inherently complex and the prosecution may not be able to prove you had “ownership” of the drugs, which means dominion and control.
If you choose us to represent you, we will argue that your presence in a vehicle, presence at a residence or the scene of the crime, in and of itself is not sufficient for the prosecution to prevail.
We will require the prosecution prove you had knowledge of the drug substance or narcotics and its presence, plus there was a usable quantity of narcotics or drugs.
If there is a basis to argue the police had insufficient grounds to arrest and/or lacked “probable cause,” we will require the San Diego Superior Court suppress the evidence by filing a “1538.5″ Motion under the Penal Code.
Drug Sentencing Alternatives
We advocate for our clients that treatment is a more appropriate and effective method of resolving cases, if the facts and circumstances justify this result.
Hence, we seek to avoid a sentence to County Jail or state prison.
We work with several experts to help you achieve sobriety and not punishment. If you have been arrested and charged with a drug-related offense, we will develop the alternatives that include Proposition 36, Diversion, and Drug Court.
In November, 2000, the California legislature passed a law entitled the Substance Abuse and Crime Prevention Act (Proposition 36). Now, first- and second-time non-violent, simple drug possession offenders have the opportunity to receive substance abuse treatment instead of incarceration.
At the present time, possession for sale, trafficking, production or manufacturing controlled substances do NOT count as non-violent drug possession offenses, and therefore, “Prop 36″ relief is not available.
When the San Diego Superior Court agrees to impose a Proposition 36 sentence, it requires treatment for up to one year, with an additional six months of “aftercare” treatment.
Rehabilitation may include inpatient and residential drug treatment, as well as outpatient treatment, a halfway house (sober living), and drug education classes.
When we obtain diversion for our client, there will be a plea of guilty to the drug charge, but you are NOT sentenced. You must undergo the diversion program, which consists of a number of drug classes. Random drug testing is conducted, and if you have a “dirty” test you will likely be brought back to the court to face serious consequences.
Not everyone is eligible for diversion. However, if you qualify and successfully complete diversion, we will obtain a dismissal of your case and you will avoid a conviction on your record.
The San Diego Drug Court affords drug-addicted defendants a supervised treatment program. There are several drug programs in San Diego, which are separated into different phases. In this environment, you earn and therefore have more freedoms each time you successfully complete a phase.
Although the San Diego Drug Court may impose a period of incarceration in County Jail, we will obtain dismissal of your case when the entire program is successfully completed.
If you are being investigated for, or have been arrested for and are facing drug charges in San Diego, we want to be your personal San Diego drug defense attorney. Contact the managing attorney, Sam Spital, at 619.583.0350 or send an e-mail now so that we can help.